New Battlefields/Old Laws to Celebrate a Decade of Cutting-Edge Scholarship at World Summit on Counter-Terrorism

At this year’s World Summit on Counter-Terrorism—Sept. 11-14, 2017, in Herzliya, Israel—INSCT will convene its 10th New Battlefields/Old Laws (NBOL) workshop. One of INSCT’s signature projects, NBOL has grown since 2007 into a wide-ranging series of workshops and publications that reexamine the application of centuries-old customs and laws of armed conflict in the age of asymmetric warfare.

“I look forward to both a celebration and a compelling workshop in Herzliya, Israel, as NBOL continues to illuminate a path for legal scholars navigating the complex laws of armed conflict.”

Co-chaired by INSCT Director William C. Banks, the theme of this year’s New Battlefields/Old Laws 10th Anniversary Workshop is “Crisis Management in Times of Transition.” It will be a key event at the Institute for Counter-Terrorism’s (ICT) World Summit, one of the world’s largest and most influential national and international security events. ICT’s Senior Researcher and Head of its International Humanitarian Law Desk Dr. Daphné Richemond-Barak will co-chair the workshop. Discussants will be Dr. Amnon Cavari, Assistant Professor, Lauder School of Government, Interdisciplinary Center, Herzilya, Israel; Dr. Katja Samuel, Co-Chair of Disaster Law, American Society of International Law; and Dr. Dana Wolf, Senior Researcher, ICT.

Says Banks, “In September 2017, I look forward to both a celebration and a compelling workshop in Herzliya, Israel, as NBOL continues to illuminate a path for legal scholars navigating the complex laws of armed conflict.”

NBOL began with an inaugural symposium in Washington, DC—hosted by NPR’s Robert Siegel—to commemorate the 100th anniversary of The Hague Convention of 1907. International legal scholars agreed that after 100 years, a re-examination of the laws of armed conflict and of international humanitarian law was a pressing requirement. Numerous modern conflicts—in Afghanistan, Iraq, Yemen, Syria, Somalia, Colombia, Sri Lanka, Myanmar, and elsewhere—underscore the shortcomings of international law’s response to asymmetric warfare. This term refers to conflicts in which the standing, regular army of a nation state is pitted against insurgent, irregular combatants, who often don’t wear uniforms, blend in with civilian communities, use terror tactics, and don’t recognize international treaties.

The insurgent, terrorist tendencies of modern insurgents present significant strategic and tactical challenges for states and citizens. Neither The Hague Rules of 1907—the “customary laws of war”—nor post-1949 laws of armed conflict and accompanying international humanitarian laws account for non-state groups waging prolonged asymmetric campaigns within civilian populations and across international borders. Nation states lack guidance in shaping the parameters of their response and are often left with little choice but to respond in ways that inflict heavy civilian casualties. The result is that a defending state is often criticized for violating norms that do not accommodate the asymmetric conflict.

To address these shortcoming, over the past decade NBOL has addressed such sub-topics as counterinsurgency operations; foreign terrorist fighters; “legal triggers” of war on new battlefields; how the customary laws are “operationalized” on modern battlefields; and the duties of states engaged in conflict with non-state actors.

Numerous international and human rights thought-leaders have served as discussants over the years, including renowned human rights scholar Boaz Ganor; military law expert Geoffrey Corn; Anton Camen of the International Committee of the Red Cross; national security scholars Laurie Blank and Jennifer Daskal; and David Scharia, Senior Legal Officer of the UN Security Council Counter-Terrorism Committee Executive Directorate.In addition, scholarship arising from the workshops has led to two books, both edited by Banks: New Battlefields/Old Laws: Critical Debates from the Hague Convention to Asymmetric Warfare (Columbia, 2011) and Counterinsurgency Law: New Directions in Asymmetric Warfare (Oxford, 2013).

This year, NBOL will examine how the laws of armed conflict and humanitarian law impacts peace time crises. “The battlefield has grown geographically broader in recent years, with conflicts spilling over national boundaries. At the same time, the distinction between peace and war has eroded. Terrorism, in particular, features in both peace and war under quite similar forms,” explains Banks. “Moreover, national security crises, public health emergencies, natural disasters, and financial crises are becoming conflict trigger issues not that different from those encountered in times of war. This workshop will look at the reasons for this change, the extent of crisis management by various actors, and the crises’ local and global repercussions. Questions of authority, legitimacy, and decision-making in times of governmental transitions also will be examined.”

(Bloomberg Law | July 26, 2017)Stephen Gillers, a professor at NYU Law School, and William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University of Law, discuss the latest news in special counsel Robert Mueller’s investigation into Russian interference in the 2016 election. They also discuss President Trump’s changing positions on attorney general Jeff Sessions, and whether or not he will be able to keep his job. They speak with June Grasso and Michael Best on Bloomberg Radio’s “Bloomberg Law.”

“There couldn’t be a bigger assault on the United States than to try to undermine our democracy by changing who we select to be our leaders, whether it’s the presidency or a Congressional race,” says William C. Banks of Russian interference in the 2016 U.S. presidential election. Banks is a pro-fessor of public administration and international affairs with a distinguished professor appointment in SU’s College of Law. He is also the founding director of SU’s Institute for National Security and Counterterrorism (INSCT).

He says there’s no evidence hackers infiltrated the voting tabulation systems in any of the 50 states. But Russian-hired trolls may have been successful in swinging election results in key states — Wisconsin, Michigan, and Pennsylvania — with innumerable “fake news” hits on social media.

While Banks views such election interference as “a direct threat to everything we stand for,” he says there are many ways foreign governments and terror groups can inflict harm through cyber means. While the election has given foreign hacking a high profile, cyber attacks occur on a daily basis to both private and government entities.

“Hackers, cybercriminals, insurgents, and terrorists penetrate private sector and government net-works and steal personal information; trade secrets and other commercially valuable data; and infect sys-tems with malware that attempts to disrupt, degrade, and sometimes destroy the systems that host and transmit our most important information,” he says.

An internationally recognized authority on national security, counterterrorism, war powers, and re-lated topics, Banks has collaborated on security issues with organizations around the world, ranging from NATO to The Hague. He is the author of seminal books in the field, including Soldiers on the Home Front: The Domestic Role of the American Military (Harvard University Press), among many others. He is edi-tor-in-chief of the Journal of National Security Law & Policy.

“The attacker seeks to exploit system weaknesses their targets are not aware of.”—RENÉE DE NEVERS

Banks warns that nation/states and private actors who couldn’t match us in a conventional conflict could inflict tremendous cyber damage. He points to a major cyber attack by Russian hackers on Tallin, Estonia, in 2007, which impacted the Estonian parliament, banks, ministries, newspapers, and broadcasting. “Estonia is arguably the most wired country in the world, and its banking system was effectively shut down, severely impacting the country’s economy,” says Banks.

In the aftermath, NATO established the Cooperative Cyber Defence Centre of Excellence, in Tallin, a multinational and interdisciplinary hub of cyber defense expertise to study law governing cyber warfare, which partners with INSCT to hold joint workshops and conferences related to cyber warfare and defense.

According to David Van Slyke, dean of the Maxwell School and an expert on public-private partnerships, America is especially vulnerable. “Infrastructure in the United States — transportation, energy, water and sewer, logistics, and others — has shared ownership with public, private, and pub-lic-private configurations. One of the unique challenges with cyber-security threats is the need for information sharing, coordination, and vigilant monitoring among public and private organizations, each of which has some level of mistrust of what each is doing, sharing, and not doing.”

Van Slyke, who is also the Louis A. Bantle Chair in Business and Government Policy, says a proactive defense against cyberterrorism must depend upon “strong rules of engagement between public and private partners.”

“Despite ongoing improvements in cyber security, preventing cyber attacks is difficult because the attacker seeks to exploit system weaknesses their targets are not aware of, so the ‘defender’ is reacting to attacks, rather than being able to prevent them from happening,” says Renée de Nevers, asso-ciate professor of public administration and an expert on national and international security. She says the human factor makes it difficult to keep systems secure, because people slip up on cyber security measures, since these are sometimes perceived as nuisances.

De Nevers, who has served as a research fellow at the Belfer Center for Science and International Affairs, the Center for International Security and Cooperation, the Hoover Institution at Stanford University, and the International Institute for Strategic Studies, says that some cyber attacks appear to be phishing ef-forts seeking information while others are more destructive in intent, trying to override control systems or cause infrastructure breakdowns. “Both kinds of attacks are worrisome because phishing may give the at-tacker valuable information to use for other unknown purposes down the road,” she says.

Often the targets are unaware of attacks for weeks or even longer. And it can be hard to determine who is behind an attack, whether it was initiated by state actors or other groups or individuals, says de Nevers, co-author of Combating Terrorism: Strategies and Approaches (CQ Press), with Banks and former Maxwell dean Mitchel Wallerstein. “It appears that actors in several countries, including Russia, China, and Iran, engage in cyber attacks against other states frequently, as does North Korea,” she says.

While cyber warfare is typically thought of outside conventional forms of conflict, retired Vice Admiral Robert Murrett says our military experiences cyber attacks on a daily basis. “It’s just part of the landscape now, something that happens all the time relative to what we describe as ‘phase zero’ operations we’re engaged in around the world,” he says.

In 2009, U.S. Cyber Command was created under U.S. Strategic Command, to provide a centralized military command of cyberspace operations and defense of military networks. “I’d like to think we’re doing a better job of protecting against vulnerabilities,” Murrett says.

Murrett became deputy director of INSCT and a professor of practice in public administration and international affairs after a long and distinguished career at senior levels within the U.S. defense and intelligence fields, serving as director of Naval Intelligence and director of the National Geospatial-Intelligence Agency.

While routine cyber attacks are a significant threat, Murrett is focused on aggression from Russia and Iran and the activities of non-state actors working out of ungoverned areas (known as “black spots”), which can be used as a base for conducting operations against us or our allies. (See article at left.) He re-mains concerned about the proliferation of nuclear weapons. “The global inventory of nuclear weapons is well in excess of 15,000 and varies widely,” he says.

Aside from a deliberate attack are ongoing issues of maintenance and security in countries such as Russia and Pakistan, says Murrett, who is also a staff member at the RAND Corporation and the Institute for Defense Analyses. Regarding state actors, he says he’s most worried about North Korea, “which has a very small inventory, but is most worrisome on a weapon-per-weapon basis.”

And of course, while computer systems controlling our own nuclear arsenal are subject to near continuous cyber attack, Banks reminds that the United States is also in the game.

Cyberwarfare is a likely tool the United States would employ to prevent a nuclear strike. Potentially, he says, “you could shut down command and control and really influence the outcome of a kinetic war by using cyber weaponry.”

EVEN IF KUSHNER CAN’T RECALL HIS RUSSIA TALKS, THE FBI WOULD

(WIRED | July 24, 2017) On Monday, President Trump’s senior adviser and son-in-law Jared Kushner told members of the Senate Intelligence Committee and the press that he did not “collude with Russia” or “know of anyone else in the campaign who did so.” In his prepared remarks for Congress, Kushner described several interactions he had with Russian ambassador Sergey Kislyak, but also claimed to have no record or recollection of other conversations that have been previously reported by the media.

“The Russian ambassador has probably been under surveillance since before you and I were born.”

Fortunately, investigators don’t need to rely on Kushner’s apparently porous memory about whom he spoke with when, and about what. The Federal Bureau of Investigation likely has it all on tape.

Listening In

The Foreign Intelligence Surveillance Act, or FISA for short, permits intelligence agencies to collect the communications of any “agents of a foreign power,” including diplomats. “The Russian ambassador has probably been under surveillance since before you and I were born,” says William Banks, a professor at Syracuse University Law School and director of the Institute for National Security and Counterterrorism.

That means that while Kushner failed to report many of his meetings with foreign officials on his official SF-86 form—an innocent mistake by his assistant, Kushner insists—Congressional investigators and indeed the Department of Justice’s special counsel Robert Mueller could easily check Kushner’s statements with the FBI’s own intercepts–particularly the two reported 2016 phone calls that Kushner says he does not remember. (The FBI handles FISA collection in the US, which would include the Russian embassy, while the NSA listens in abroad) …

The Brennan Center for Justice convened an Emergency Powers Roundtable on July 21, 2017, to look at several aspects of the ability of the Executive Branch to act unilaterally in times of national security emergency, including during war, natural disasters, pandemic, riot, etc.

Panels examined the constitutional history of emergency powers, when and how emergency powers can be deployed in the US, the “dangers” inherent in their use, and what reviews are available to avoid over-reach by the Executive Branch.

Speaking in the first session—“Identifying the Danger Zones”—INSCT Director William C. Banks opened discussion on “Domestic Military Deployment.”

Emergency Powers Roundtable

July 21, 2017 | 9 a.m. to 4:30 p.m.
Washington, DC

Setting the Scene

To ensure that all participants are starting from a common point of reference, we will begin with a 30,000 ft overview of emergency powers, including the history of their use in the US, the extent to which the Constitution grants or limits emergency authorities, the statutory and administrative framework for emergency powers, and some key lessons from other countries.

Identifying the Danger Zones I

In the two middle sessions of the day, we will examine dffirent areas of government operations, and for each area we will ask the following questions: (i) What events could trigger emergency responses in this area, and how likely are those events? (ii) What emergency authorities are available in this area, and where are the areas of concern (if any) in terms of potential misuse or overreach? (iii) What new authorities might the administration seek to acquire or assert in the wake of the emergency?

Securing the Homeland After a Major Attack (Discussion opener: Jonathan Meyer)

Heading Off Overreach

Having identified potential scenarios in which real or perceived emergencies could trigger executive overreach, we will end the day by seeking to identify the practical and legal levers that can be deployed, either inside or outside government to try to head off that result. These levers could include but almost certainly aren’t limited to judicial review; congressional oversight; intervention by inspectors general, general counsels, or other internal checks (the “deep state”); state and local governments; influential public figures; and grassroots mobilization. What is most likely to be effective? What can be done ahead of time either to prevent misuse of emergency powers or to establish the conditions or an effective response?

(Re-published from The Jurist | July 21, 2017) With the raspy barking of a US President in the background trying to “Make America Great Again,” the world shrinks away in surprise and confusion. As the light begins to wane on that bright and shining experiment on the hill called “America”, the international community faces the yawning maw of a retrenching America, once again looking inward, shrinking away from a leadership position it has held since World War II. Unprepared for any of this, the West is losing its way uncertain and weakened. They look for any indication of someone to lead.

“The United States has always been at the forefront in creating justice mechanisms.”

It will not be America. From the environment to trade, the US has chosen to step away from not only legal but also moral obligations. This past week another indication of further retrenchment was manifest when US Secretary of State Rex Tillerson announced that he was closing the Office of Global Criminal Justice (OGCJ), the office where the US asserts leadership and support for international justice and holding accountable those who feed upon their own citizens. Like much else this new US administration has done, this is wrong!

The United States has been the cornerstone for the creation of modern international criminal law. It played the leading role at the International Criminal Tribunal at Nuremberg in 1945, the subsequent Council 10 trials, up to and including the establishment of the tribunals and courts for Yugoslavia, Rwanda, Sierra Leone, and Cambodia, as well as the International Criminal Court. BUT FOR the support of the United States, most of these justice mechanisms would not have come into existence or would have had existential and overwhelming challenges at the beginning. The United States has always been at the forefront in creating justice mechanisms.

Past administrations have had policy differences with the world community on the administration of international justice, but, at the end of the day, they did not waiver in the perception that the rule of law is important for a more stable world. This administration, a newly forming kleptocracy, is facing the rule of law with almost a blatant disregard, certainly a jaw-dropping disrespect not seen in the history of the republic. Ruefully, commentators have said that in Washington “nothing matters” …

(The Chautauquan Daily | July 17, 2017) In 2013, Charles Taylor, the former president of the West African nation Liberia, was convicted and sentenced to 50 years in prison for war crimes and crimes against humanity for subjecting the people of Sierra Leone to murder, mutilation, rape and sexual slavery. Estimates vary, but it is believed that more than 50,000 people were killed, several hundred thousand were maimed or wounded and 2.5 million were displaced in a nation of 6 million during 11 years of conflict.

“If they call me tomorrow, I could prosecute Assad.”

Taylor is the only sitting head of state ever to be convicted on such charges, according to David M. Crane, the chief prosecutor in the case. He was appointed by Kofi Annan, then-secretary general of the United Nations, at the recommendation of the Security Council, to create and manage the independent Special Court for Sierra Leone. Besides Taylor, the leaders of three other factions in the war were also convicted of war crimes, including the widespread forced conscription of children as fighters.

Why was Crane chosen?

“That’s the $25 question,” he said. “(Former U.S. secretary of state) Colin Powell told me that I had a reputation for creating new organizations and driving them forward toward success.”

At 3:30 p.m. [on July 18, 2017] in the Hall of Philosophy, Crane will discuss his work and address the theme “Journalism & International Justice” as part of the Oliver Archives Heritage Lecture Series. He will be joined by the television and newspaper journalist Brian Rooney, the winner of four Emmy and two Edward R. Murrow awards. A renowned expert in international criminal law and a professor of that subject at Syracuse University’s law school, Crane said he chose the topic because of “the role of the press in bringing atrocities to light. Without the press, politicians would just cover them up.”

While Taylor is the only head of state to be tried and convicted by an international tribunal, Crane — along many other human rights advocates and legal scholars — hopes he will not be the last. Crane created and has headed the Syrian Accountability Project at Syracuse University since the beginning of the civil war in Syria in 2011. The group has built a huge database and index matrix cataloguing war crimes and crimes against humanity perpetrated by Syria’s president, Bashar al-Assad and the leaders of 13 fighting factions. The group, which has verified 8,000 pages of individual war-crime incidents, has been praised by the U.S. Congress and the United Nations for its work, and could be called upon to assist in any potential tribunal.

“If they call me tomorrow, I could prosecute Assad,” said Crane, who served in the U.S. military and worked for 30 years on national security issues and policy for the Department of Defense and congressional intelligence committees …

INSCT Faculty Member and Associate Professor of Law Tara Helfman has been named Senior Counsel to the Assistant Attorney General for Civil Rights in the US Department of Justice (DOJ).

Helfman—who is currently serving as a Visiting Scholar at Georgetown Law—will commence work at DOJ headquarters in Washington, DC, this month

As a member of the Civil Rights Division, Helfman will defend the civil and constitutional rights of all Americans by upholding the Constitution and enforcing federal civil rights law. This prestigious appointment complements her extensive scholarship in constitutional law.

Pentagon wants to build new US facilities in Iraq, Syria

(Al-Monitor | July 13, 2017) The Donald Trump administration is pushing Congress for the authority to build new “temporary” facilities in Iraq and Syria as part of the US-led campaign against the Islamic State.

“It looks to me like what they’re trying to do is get a little more maneuverability to create some infrastructure for deepening the fight beyond Raqqa and Syria.”

In a policy statement released Tuesday night, the White House argues that US troops are hamstrung by legal restrictions on their ability to expand US military infrastructure “in both Iraq and Syria.” The administration wants lawmakers to extend existing authorities that only cover the “repair and renovation” of facilities to also encompass “temporary intermediate staging facilities, ammunition supply points, and assembly areas that have adequate force protection.”

“These facilities, supply points, and assembly areas will enable the pursuit of [IS] into the Euphrates River Valley and help improve the security of Iraq’s borders,” the statement reads. “Current authorities … severely limit the coalition’s maneuverability and its ability to respond quickly to changing operational conditions.”

Tuesday’s Statement of Administration Policy, which the White House uses to present its views on pending legislation, takes the House Armed Services Committee to task for not including the change in its annual defense authorization bill released last month, although it is not clear if lawmakers had received the request from the Pentagon in time. The Senate Armed Services Committee draft, released this week, does, however, include the requested change. The House began floor consideration of the bill Wednesday.

The added flexibility would enable the Defense Department to go on the offensive to root out IS safe havens in Iraq and Syria, according to Corri Zoli, the director of research at Syracuse University’s Institute for National Security and Counterterrorism.

“It looks to me like what they’re trying to do is get a little more maneuverability to create some infrastructure for deepening the fight beyond Raqqa and Syria,” Zoli told Al-Monitor. “It’s kind of an attempt to create a lily-pad structure in the Levant to go after [IS] and their entrepreneurial efforts to start miniature caliphates in the region.”

Defense Secretary James Mattis, Zoli added, “is thinking a couple steps ahead. He wants to win the peace, stabilize the region and militarily pressure Iran. If he can do it with logistics all the better.”

But detractors say the effort could further draw the United States into Syria’s complex civil war, even as Congress continues to resist launching a full-fledged debate over updating the 2001 use of force authorization that remains the main legal justification for US involvement in the region …

(Re-published from The Hill | July 12, 2017) [On July 12, 2017] Washington’s attention turns to the confirmation hearing of Christopher Wray, nominated by President Trump as FBI Director following the firing of James Comey in that position.

“But perhaps the most disturbing recent official effort to sweep our torturous past under the rug is the Administration’s surrender of most copies of the 6,770-page study of the CIA’s detention and interrogation practices to the Senate Intelligence Committee.”

In the inevitable focus on the Russia investigation and Comey firing fallout, Senate Judiciary Committee members would be remiss not to use the opportunity to probe the issue of Wray’s previous role as Assistant Attorney General in President George W. Bush’s Justice Department. What are his past and current views on the use of torture in interrogations?

In the years following 9/11, our government unleashed a program of illegal torture and rendition of suspected enemies.

Recent efforts to bury the most comprehensive account to date of the U.S. torture program, coupled with Administration appointments of those who played a key role in it, raise sharp concerns about human rights, government transparency and accountability.

Wray served in a Justice Department which sought to justify the use of torture by since-repudiated legal gymnastics. Glimpses from highly redacted government documents obtained through a Freedom of Information Act request by the ACLU indicate that, at the very least, Wray knew about detainee abuse and was involved in discussions about harsh interrogation techniques.

His stance in those conversations remains a mystery, but members of Congress and the American public have a right to a full picture of what happened. Nothing less will prevent a repeat of these mistakes.

Wray is not an outlier among recent appointees who played a role in this dark chapter of American history.

Steven Bradbury, a key enabler of the torture program, was nominated as General Counsel of the Transportation Department. Bradbury has suffered no consequences for his 2007 memo that helped authorize the since-discredited program.

These two nominations follow the February appointment of Gina Haspel as Deputy Director of the CIA; who, according to multiple reports, personally oversaw the use of torture at a black site in Thailand.

But perhaps the most disturbing recent official effort to sweep our torturous past under the rug is the Administration’s surrender of most copies of the 6,770-page study of the CIA’s detention and interrogation practices to the Senate Intelligence Committee, which produced the report.

This recall was requested by the Chair of that Committee Sen. Richard Burr (R-NC). The declassified summary of the report contains a damning assessment of the CIA’s tactics as both ineffective and damaging to America’s reputation and influence.

It raises the distinct possibility that some of these actions violated both international and domestic law …